35366 Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations

DEPARTMENT OF THE INTERIOR R. Ehrlich and his associates at Stanford naturally from neighboring “reservoir” University and Colleagues elsewhere colonies. if other surviving colonies exist Fish and Wildlife Service since 1959. The but?erfly’s distribution. within a few miles. A third habitat behavior, eco!ogy, and population category consists of areas where both 50 CFR Part 17 dynamics are relatively wetl- foodplants occur on other soil types understood. similar to those derived from serpentine. Endangered and Threatened Wildlife Euphydryas editha bayensk is a All such tertiary habitat found has been and Plants; Determination of medium-sized butterfly with a wingspan located on areas mapped geologically as Threatened Status for the Bay of between 1% inches [38 mm) and 2% Checkerspot Butterfly (Euphydryas the Franciscan formation. Strong inches (56 mm). The forewings have seasonal variation in numbers of editha bayensis) black bands along all the veins on the individuals characterize populations in AGENCY: Fish and Wildlife Service, upper wing surface, which contrast this kind of habitat. and they seldom interior. sharply with bright red and yel!ow support dense populations. evidence ACTION: Final rule. spots, The black basal coloration gives a that this habitat category contributes more decidedly checkered appearance only marginally to long-term survival of SUMMARY: The Service determines the than in other subspecies such as the the species, providing only temporary bay checkerspot butterfly to be a smaller E. e. wrighti of Southern recruitment of individuals and possible threatened species. This butterfly California, or the montane E. e. editha stepping stones for colonization. subspecies occurred historically in (Sternitzky 1937). E. editha bayensis is Habitat difficulties faced by the bay isolated colonies, many of which have typically darker than E. e. Iuestierae checkerspot butterfly can be been eliminated as a result of drought, and lacks a relatively uninterrupted red summarized as: (1) Permanent loss of urban development, highway and road band demarking the outer wing third more than half of its primary habitat, construction, livestock overgrazing, and (Murphy and Ehrlich 19803, but the bay with two out of the four primary habitat other land use activities that altered the checkerspot is not as dark overall and sites believed large enough to function natural plant communities upon which it has brighter red and yellow colors than as population reservoirs; (21 present depends. Although recorded in the E. e. insularis (Emmel and Emmel t9zS). extirpation from about 29 of 32 probable literature from more than 16 separate All habitat of the bay checkerspot and 5 of 8 known secondary habitat localities on the San Francisco butterfly exists as isolated islands of areas, with permanent loss through Peninsula and adjacent outer Coast native grassland on shallow serpentine- habitat modification of at least half of Range of California, only a few of the derived or similar soils that support such secondary habitat areas: and (3) largest colonies, perhaps only two, abundant growth of the butterfly’s two recent probable extirpation from at least retain habitat extensive enough now to larval foodplanta, annual plantain 5 of 6 known areas of marginal habitat permit survival through drought and (Plantago erecta) and the hemiparasitic and more than 9 likely such areas. other stresses predictable on a time annual owl’s clover (Orthocarpm Natural recolonization appears to be a scale of decades. This determination densiflorus). Presence of both very rare event. For example, in 21 years that the bay checkerspot butterfly is foodplants is evidently required for successful completion of the bay of study with marked populations less ihreatened implements the Protection than four miles apart at Woodside and provided by the Endangered Species Act checkerspot’s life cycle in nature (Singer 1971, Ehrlich et al. 1975). Jasper Ridge, translocation of a single of 1973, as amended. The Service will indivi&ual from one colony to the other The bay checkerspot’s known and defer designation of critical habitat for was observed only once (Murphy and the bay checkerspot butterfly in order to likely habitat is considered here under three general categories. Primary habitat Ehrlich 1960). Because the number of complete the necessary economic habitat islands potentially available to analyses. occurs dire&y on outcrops of serpentine (geologically identified as mesozoic the butterfly continues to decline as a DATE: The effective date of this rule is result of habitat modifica!ion, and the October 19,1967. ultrabasic intrusive rock) larger than about m acres. Large and distance between suitable sites is thus ADDRESS: The complete file for this rule topographically diverse areas cf habitat increasing, the actual likelihood of is avaiiable for inspection, by appear to insure survival against natural recolonization is approaching appointment, during normal business drought stresses that occur predictably zero. hours at the U.S. Fish and Wildlife several times in each century. These On October 21.1980. the Service was Service, Lloyd 566 Building, 500 N.E. large areas fundtion as primary petitioned by Drs. Bruce 0. Wilcox, Multnomah Street, Suite 1~~2, Portland. population reservoirs. Only four such Dennis D. Murphy, and Paul R. Ehrlich Oregon 97232. areas appear on geologic maps within to list the bay checkerspot butterfly as FOR FURTHER INFORMATiON CONTACT: the butterfly’s known range, and only an endangered species. The petition was Mr. Wayne S. White, Chief, Division of two now support colonies of significant later supplemented with a letter and Endangered Species, at the above size. Secondary, or “satellite,” habitat other materials received on December address (503/231-6131 or FTS 429-6131). islands are smaller serpentine outcrops 11.1986. The Service included the bay SUPPLEMENTARY INFORMATION: with native grassland typically capable checkerspot butterfly in a Federal of developing robust bay checkerspot Register Notice of Review on February Background colonies in years of favorable climate 13,198l (46 FR 43799). A review of its The bay checkerspot butterfly when the habitat is relatively status was made to determine if it (Euphydryas editha bayensis) was undisturbed. Wet years often correlate should be added to the U.S. List of described by Sternitzky [1937) as a race with population declines, and severe Endangered and Threatened Wildlife. on the basis of its physical drought has been observed to cause On October 13,1983, the Service found characteristics. DOS Passos (1964) and local extirpation of such satellite the proposed listing to be warranted but all subsequent published treatments colonies. Extirpation of satellite colonies precluded by other pending listing recognize the bay checkerspot as a is likely on a time scale of decades. actions, and reported this finding in the distinct subspecies. It has been the Following local extirpation, satellite Federal Register on January 20.1984 (49 subject of extensive research by Dr. Paul habitat is thought to be recolonized FR 24R5). On September 11,1984, the Federal Register 1 Vol. 52, No. 181 / Friday, September 18, 1987 i Rules and Regulations 33367

Service published a proposed rule to list Summary of Comments and preparing this final rule. Public the bay checkerspot butterfly as an Recommendations comments were received during the endangered species and determine its In the September lL1984, proposed period from September 11.1984, to critical habitat (49 FR 35665). which rule (49 FR 35665) and associated August 1,1986. During that time 37 oral constituted a final petition finding notifications. all interested parties were and 95 written comments were received affirming that the petitioned action was requested to submit factual reports or from various individuals, organizations, warranted. information that might contribute to the and government agencies. Of those, 35 A public hearing regarding the development of a final rule. Appropriate were additional comments by persons proposed rule was held on November 13, State agencies, county and city who had commented at least once 1984, in San Mateo County, California. governments, Federal agencies, before. Among persons who expressed The comment period had been scientific organizations, and other opinions, four opposed what they feared scheduled to close on November 13, interested parties were contacted and was premature listing, 24 others either 1984, but was extended on October 26, requested to comment. opposed listing altogether or at least to 1984 I-19 FR 43076). until November 23, On July 25,1984, Mr. Paul Koening, the extent that they expected it to 1984. !t was reopened on March 14.1985 Department of Environmental Services, interfere with planned or ongoing (50 FR 43076). at the request of lawyers County of San Mateo. requested a public activities, nine expressed confidence hearing on the proposal to iist the San that all apparent conflicts threatening fc: United Technologies Corp. It was survival of the butterfly could be reopened d&ain on August 12,1985 (50 Mateo thornmint, which was published June 18,19&I (49 FIX 24966). After resolved, 59 expressed belief in a need FR 32X6j, to avail the Service of for Federal listing of the butterfly. and comp!ete and current information, and discussions with the County and other interested agencies and individuals, the eight gave no clear indication of their reopened a third time on September 13, Service decided to hold a combined opinion in regard to listing. In the 1985 (50 FR 37391). because information public hearing for the thornmint and bay following discussion, comments related and reports prepared by Dr. Richard checkerspot proposals. Notification of primarily to habitat of the butterfly are Arnold and formally submitted to the the combined public hearing was considered only as they relate to threats Service on behalf of United published in the Federal Register on and the butterfly’s status for listing, and Technologies Corp. indicated a Friday,October 28,1984(49F'R 43076]. not as they relate to possible exclusion substantial scientific disagreement Notifications of the proposed listing of or inclusion of certain areas as critical regarding the sufficiency and accuracy the bay checkerspot butterfly and the habitat or to possible economic of available data supporting the listing. public hearing of November 13,1984, consequences of critical habitat On July 2,1986, the comment period was were published in the following local designation. As mentioned, the Service reopened a fourth and final time (51 FR newspapers: San Jose Mercury News on is deferring the critical habitat 24178) to meet with Dr. Murphy and October 31.1984, Sun Francisco designation until a later time. representatives of United Technologies Chronicle/Examiner on October 28, Three principal subject areas of Corp. and others, to clarify information 1984, Pub Afto Times on October 38. comments that relate to the butterfly’s on alleged new populations of the bay 1984 and the San Mate0 Times and status are: 11) Scientific defmition of the checkerspot butterfly from San Luis News Leader on October 30,lw.k subspecies, (2) adequacy of the Obispo, and San Benito Counties, Written notifications also were sent to distribution data, and (3) threats to California. State, local and Federal agencies, and to habitat from various activities and interested individuals and projects. Only a minor threat is believed The testimony recorded at the public to exist from overutilization of hearing and all written comments organizations. On November 13,19&Q, the Service individuals by collectors, and it was not received by the close of the comment a subject of significant comment. This period on November 13,1984, and held a public hearing at the Hillsdale Inn in San Mateo County, Cahfornia, on the section of the rule will summarize and meeting of July 16,1986. and all written proposals to list the San Mateo discuss these three subject areas in comments received by the close of the thronmint and bay checkerspot butterfly order, followed by mention of some last comment period on August 1,1986, as endangered species and to designate general comments from agencies and are part of the public record and have critical habitat for the butterfly. organizations, and end with a summary been carefully considered in the drafting Approximately 120 people attended the of comments that criticized the Service’s of this final rule. The Service has also hearing. The comment period closed on adherence to rulemaking procedures. considered the findings of a panel of November 23.1984, but was reopened on Six of the comments questioned the scientists asked to address the March 14,1985, August 12.1985. rationale for listing a butterfly only sufficiency and accuracy of available September 13.1985. and again on July 2, experts could identify. One suggested taxonomic information. As a result of 1986. An open meeting was held in that the bay checkerspot is one of the this extensive consideration, the Service Sacramento on July 16,2986, during the most plentiful of all butterflies. Several determines that the bay checkerspot is a final open comment period. comments indicated belief that the threatened species. Pursuant to section Approximately 15 people attended the designation was inappropriate because 4[b)(S)(C](ii) of the Endangered Species meeting and five presented ora! the hay checkerspot is a subspecies and Act. as amended, the Service determines comments. Notification of this meeting the Act was designed to protect full that critical habitat is not now was made in the Federal Register (51 FR species. determinable. The Service is completing 24178) and by letter to those individuals The Service replies that the term its analyses of potential critical habitat submitting previous comments. The last “species,” pursuant to section 3[16) of in accordance with sections 4(a)(3)(A) comment period closed OR August 1. the Endangered Species Act, includes and 4(b)(2), and intends to designate 1986. any species or subspecies of fish. critical habitat for the bay checkerspot Comments from the public hearing of wildlife, or plants, and any distinct butterfly when these analyses are November 13,1984, and meeting of July population segment of any species of complete. 16, 1986, as well as written comments vertebrate fish or wildife that have been carefully considered in interbreeds when mature. The bay 35368 Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations checkerspot butterfly (EuphydrLas lack of clear-cut enzymatic of the redefined E. e. baruni, were from editha subspecies bayensis) qualifies as differentiation between E. e. bayenis the extreme north of Mendocino County. a “species” under the Act. Its taxonomic and isolated grasslcind checkerspot Murphy (1982) did state that he status is recognized in all the major colonies found in Santa Barbara and considered their affinities to probably treatments in the scientific literature. San Luis Obispo Counties. Dr. Arnold’s lie with populations in Oregon that use a and the Service has found no alternative usage implies that such a lack of different larval foodplant than E. e. taxonomic treatments that controvert enzymatic differentiation should in bayensis. and “which may be” referable this conclusion. effect enlarge the subspecific definition. to E. e. toylori. Doudoroff s (1935) note Lawyers for United Technologies and outweigh other observable antedated the 1937 description of E. e. Corp., on the basis of analyses prepared phenotypic or behavioral differences. bayensis, of course, but did not specify for them under contract by the Dr. Peter F. Brussard of Montana State anything about morphology or habitat, entomolonist Dr. Richard A. Arnold. University, who conducted much of the and mentioned no voucher specimens. submittedvfour sets of comments in 1985. enzyme electrophoretic work cited by Since Dr. Doudoroffs note did not all emphasizing a claim that the the petitioners and by Dr. Arnold in this account for another checkerspot subspecies E. e. bayensis is not defined context. provided some specifics and his butterfly species that was probably in a way that would limit it to the opinion in a letter of comment dated present. and because serpentine geographic range indicated in the August 21.1985. He stated that chaparral rather than grassland proposed rule. Their comments on May electrophoretic analysis conducted predominates in that area, this note 16 and ]une 26 claimed the Service had subsequent to the studies on which must be considered very doubtful as failed to demonstrate that a separate statements made in the petition were evidence for including Napa County in subspecies eligible for listing exists. In a based show mainly that enzyme the former range of the bay checkerspot November 11 comment letter. they variation from year to year is quite large butterfly. modified that position somewhat, and in this genus, effectively masking any Drs. Arnold, Ehrlich, and Murphy, made it clear that they did not question normal subspecif’ic variability that may using the medium of letters of comment the separateness of the bay checkerspot be present. The net effect, he stated, is a on this rule. engaged in an subspecies, but rather its “definition.” severe limitation on the taxonomic argumentative exchange in respect to Their comments incorporated a letter utility of enzyme electrophoresis as a taxonomic philosophy and motives for from Dr. Arnold dated November 7. basis for any decisions about making various statements. Much of the 1985. in which he suggested that two distinctiveness or nondistinctiveness of exchange pertained to Dr. Arnold’s checkerspot colonies known from any Euphydryas populations. published analysis of variation in coastal grassland areas of Santa In their original petition. the another butterfly species (one Barbara and San Luis Obispo Counties. petitioners suggested that the conclusion of his paper was that no one, as well as other populations of E. editha checkerspot colonies on grassland in including himself, had found features to in the outer coast range north of San Santa Barbara and San Luis Obispo reliably distinguish subspecies in that Francisco Bay, might be more properly Counties represented isolated taxon). Although the discussion is part classified as E. e. bayensis. intermediates or intergrades between E. of the public record, the Service did not In the November 7 letter. and also in e. bayensis far to the north and E. e. find it specifically relevant to the previous comments, Dr. Arnold’5 wrighti of southern California. Emmel present consideration One letter of argument placed strong and selective and Emmel (1975), in describing the comment from a journal editor also emphasis on the use by Drs. Ehrlich and subspecies E. e. insularis, had concerned itself primarily with that Murphy in their original petition and characterized coastal E. editho found in debate and with the validity of subunits subsequent comments, and by Dr. those counties as “near” E. e. boyensis, in another species. Murphy in one publication (1982), of a common taxonomic usage that implies Under the second subject of genetic (specifically enzyme kinship but does not merge it with a comments stated above, the accuracy of biochemistry) information, as well as named entity. In a letter of comment existing distributional data. the County ecotypic (specifically foodplant and dated November 5,1985, Drs. Ehrlich of San Mateo and four individuals habitat type) information to supplement and Murphy stated that they consider commenting on the proposal indicated the conventional phenotypic (features of the mainland colonies in question belief that there has been insufficient appearance) information. The Service actually assignable to E. e. insufuris. effort to locate additional bay accepted his position as evidence for Dr. Arnold’s comments of November checkerspot colonies. The lawyers’ substantial scientific disagreement in i’,1985. further stated that Murphy (1982) comments for United Technologies cited the matter. and asked four of its own had left unresolved which subspecific above follow a logical course from the scientists to conduct a panel evaluation name to apply to Outer Coast Range effort to include widely separated of Euphydryas systematics as they populations of the species from north of populations within the subspecific scope might affect E. e. bayensis on these San Francisco. This comment also of the bay checkerspot butterfly, to a particular claims. recalled a 1981 mention by Dr. Raymond listing of available reasons for doubt The Service notes that Murphy (1982) White in a letter to the Service of a note about the completeness of the existing used a lack of clear-cut enzymatic by Doudoroff (1935) reporting some data. Their comments also follow leads differentiation, taken together with seasonal division of the checkerspot established in Dr. Arnold’s analyses and consistent habitat ecotype (chaparral). butterfly flighht period in Napa County discuss a number of other letters of foodplant (typically Pedicularis near Calistoga. Dr. White interpreted comment. The detailed exposition has densifloru) and general phenotypic (or this as possible evidence of a former as themes the wide and plentiful phenetic) similarity to reclassify certain bay checkerspot colony, subsequently distribution of serpentine rock outcrops populations of checkerspots formerly extirpated. in California, and a claim for recent treated as E. e. baroni, assigning them to The Service responds that this discovery of six bay checkerspot E. e. Luestheme. Dr. Murphy’s use is comment neglected to mention that the butterfly populations in the preceding somewhat different from the one only such populations Murphy (1982) two years, of which the centerpiece is advocated by Dr. Arnold for a reported considered to still exist, other than those the large colony near Morgan Hill. Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 1 Rules and Regulatiens 35369

The Service responds that except for Most discouraging is the lack of any A different vernacular name, “coastal discovery of the Mcrgan Hill colony, additional large serpentine outcrops checkerspot” was app!ied by Emmel and which exists in a very large area of suppor!ing grassland habitat. Even more Emmel (1973) to a number of these private property that is mostly to significant, though. is a lack of any southern entities otherwise identified trespass and that was indeed unknown additional serpentine grassland left to osty as “near buyensis.” Emmel and to the petitioners at the time of original search within the known or probable Emme! (19?$, however. did not explore petition, a review of several related range of the subspecies. possible relationships of these southern Factors that United Technologies’ Lawyers for United Technologies entities to either E. e. imuioris, a comments did not address gives an raised a number of issues in a letter of subspecies they described. or to E. e. entirely different perspective. First, comment dated July 31.1986, which will bnyens:k Snhsequently, colonies there is a critical distinction between be treated below. Many of those issues mentioned by Emmel and Emmel (1973) serpentine rock outcrops that support related to information brought forward from sands in Santa Barbara County native grassland and the more numerous for the record during the public meeting were indicated to be ecologically ones that support chaparral (and other of July 16,1986. A primary concern was different from E. e. bc;ensis (Ehriich subspecies of checkersno! butterflies, if evident!y discovery of two previously and Murphy 1981), and a colony near dny). An article on Cahfornia serpentine un-eported checkerspot (E. e&ha) Pozo, San L3is Obispo County, was by Kruckeberg (1934), submitted as an popu!ations well to the south of the Bay indicated by Murphy (1982) to represent exhibit to one cf Dr. Arnold’s letters, area, one in San Luis Obispo County, the serpentine chaparral form. E. e. devoted considerabIe attention to found by Dr. Rmhard Amcld, and one in luestherce. serpentine chaparral, but gave only San Benito County, found by Dr. Dennis At the July 16.1986, hearing. Dr. passing mention to serpentine grassland, Murphy. Arnold asserted that the butterflies citing Jasper Ridge as its primary The July 32 letter resta?Ed an ear?ier iocated in San Luis Obispo Conn+y exa.mple. Even at Jasper Ridge there is a claim that the taxonomy al these appeared ts be bay chtckerspots considerable amount of ch.sparraI. southern checkerspot populations, and, beceuse of the favorable comparison to which does not support the &ray by extension, the taxonomy of the bay descriptions in scientific literature and checkerspot butterF!y (Ehrlich I%%]. checkerspot. E. editha buyensis, is not specimens in reference collections. Dr. Second. a significant interruption in yet resolved. The Service agrees that Arnold also indicated that both Outer Coast Range serpentine outcrops subspecific taxonomy of E. editho essential food plants were present at the !ikely to support the required grassland collected from areas south of Santa San Luis Obispo population sites. habitat type begins near the line Clara County needs further elucidation. (Hearing transcript at 13.) He noted, between Santa Clara and Santa Cruz However, the subspecific name bayensis however, that statistical measurements Counties and extends southward along was apparently not applied to such were not done For butterflies collected the Outer Coast Range. It figures specimens, despite ample opportunities from San Luis Obispo County [hearing prominently in the geological maps to do so. before the issue of possible transcript at 14). and that he had not submitted to illustrate the wide listing for this taxon was raised. seen any butterflies From the “near distribution of serpentine occurrences. The July 31 comment letter claims buyensis” samples to compare them to Third, two others of the six “new bay further that the Service refused to bay checkerspot specimens. [Hearing checkerspot population&’ are based on consider the taxonomic status of transcript at 22.) Dr. Dennis Murphy, one assignment of two previously known southern E. editha colonies in of the petitioners for this action, a:id reported colonies of uncertain determining whether the bay proFessed no knowledge of the existence taxonomic status in southern Caiifornia checkerspot butterfly is endangered. On of bay checkerspots between the to E e. boyensis in accordance with Dr. the contrary, the Service received and Morgan Hill colony and San Luis Obispo Arnold’s interpretation of the species’ considered information from the area, County. He noted that serpentine taxonomy. The remaining three may or some of it in published form, but grasslands are rare in the areas between may not be colonies able to persist: one concluded after due consideration that these populations, and that the distance exists on a very small remnant of a the kind of monographic taxonomic between these checkerspot colonies is formerly extensive habitat near San work that is clearly needed to resolve several orders of magnitude greater than Mateo. and two were recorded as all the existing uncertainties is simply any recorded movement of bay occurrences on small serpentine not available now. Some specific checkerspot butterflies. Dr. Murphy outcrops in the vicinity of the largest examples of facts, ideas, and opinions further noted that the areas in between colony near Morgan Hill. that the Service considered follow. the Morgan Hill colony and the San Luis The Service accepts one implication A colony of E. editho utilizing at least Obispo County population generally of the foregoing comments, that one of the bay checkerspot’s two include unsuitable habitat, and that the undiscovered colonies or stray obligate Foodplants was mentioned by populations are efFectively isolated by a individuals of the bay checkerspot Singer (1971) and McKechcie el nL woi! of chapLrra1. @å transcript at butterfly may be found in the future at (1975) to exist in San Luis Obispo 41.) Noting first that it is generally various locations in the bay area, or County near Madonna Inn, not far From accepted that the San Benito County indeed may establish themselves in the one of Dr. Arnold’s newly reported populations belong to the subspecies vicinity of the two remaining reservoir colonies (whose foodplant is unknown]. luestherae, Dr. Murphy speculated that populations. Dr. Arnold’s explorations in Similarly, Emmel and Emmel (1975) an assignment of San Luis Obispo 1985 provided useful additional data, illustrated a specimen they identified as County populations to the subspecies and it was appropriate for him to “near bayensis” from Monterey County, bayensis would most probably involve a concentrate his search in areas of closer than any other known grassland determination that the populations arose serpentine outcrops supporting colony to Dr. Murphy’s newly reported independently a! habitat locations using grassland habitat. His report of colony in San Benito County. the same host plants and involving the overgrazing observed on most of them is Geographically close colonies are apt to same color patterns, features which discouraging from a viewpoint of long- be closer phyiogenetically than are ones have yet to be established. (Hearing term protection of butterfly habitat. Farther apart, other Factors being equal. transcript at 42.) Consequently, a similar 35370 Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations - appearance may have arisen between Dr. Murphy indicated that the scientific or commercial information” genetically distinct lineages on northern petitioners were not taxonomic experts could be used as a basis to delay and southern grasslands through of the checkerspot butterfly, and he protective actions otherwise needed is parallel or convergent changes instead reaised the question of whether any unsupportable. of through migration and/or colonization such experts really exist. (Hearing The Service also wishes to from one grassland to another. Thus one transcript at 54.) acknowledge for the record the intensive or more populations resembling Replacing the prevailing uncertain search for “stepping stone” populations buyensis may, in fact, be separately scientific opinions regarding identities of throughout the range of the species and derived. To treat similar but convergent southern colonies with detailed the State of California reported by entities as a single entity for evidence for relationships is a task for McKechnie et al. (1975). Those studies convenience is contrary to accepted skilled biologists using the array of were conducted over many years by basic biological principles, and the techniques available for phylogenetic groups of experienced collectors from Service would not knowingly do so. In investigation, Separation and Stanford University and elsewhere in the present case, evidence is insufficient identification of genetic lineages is time- connection with projects to study to determine whether convergent consuming, tedious research. quantitative gene flow and other evolution has occurred. Acceptance and consensus among biological features of this species At the July 16,1966, public hearing Dr. scientific peers requires additional (Brussard et al. 1974, Ehrlich 1965,1979. Arnold also raised a question review and time. As discussed below in Ehrlich et al. 1975. Ehrlich et al. 1980, concerning the alternative idea, already the findings of the bay checkerspot Johnson et al. 1968, Murphy and Ehrlich mentioned, that some of the southern butterfly review panel, the Service 1980, White and Singer 1974). In colonies could represent genetic concludes on the basis of the best attempting to actually measure gene intermediates between named presently available scientific flow, these researchers risked error to subspecies, which arose as a result of a information that the known E. editho the extent that they were unable to previous contiguous or widespread grassland populations from south of locate all existing geographic links or distribution. Dr. Murphy conceded that Santa Clara County are not bay stepping-stone colonies. The Service habitat continuity may have been a checkerspot butterflies. believes that the distribution data for possibility in the ecologically recent The July 31 letter of comment from Euphydryas edithu, of all subspecies, past. (Hearing transcript at 48.) The United Technologies Corp. advocates are both generally accurate and Service agrees that intermediate that the Service must take responsibility reasonbly complete. populations or clinal intergrades often for filling the existing gap of information The Bay Checkerspot Butterfly are found where the ranges of adjacent about the southern checkerspot colonies Review Panel (1988) examined the subspecies approach one another [when and should “define” or commission to be relevant literature, and reviewed it in such intermediates are lacking, specific “defined” some distinction between E. e. considerable detail. Its members rather than subspecific recognition is bayensis and “near bayensis,” based on reported unanimous agreement that usually indicated). However, normal biological “criteria.” The comment Euphydgws editha boyensis is a valid taxonomic usage does not require that presents the standard of acting on “the subspecies whose description meets all any intermediates found must be best available scientific and commercial the pertinent requirements of the allocated either to one subspecies or the information” as a primary basis for the International Code of Zoological other. but lets them be recognized action advocated, namely that the Nomenclature, that it has been simply for what they are. Furthermore. Service withdraw the proposed rule to continuously recognized as a valid Dr. Murphy made the point that, even if list the bay checkerspot as endangered, subspecies in all major works since its the San Luis Obispo and San Benito and refrain from protecting known description, that its recognized County serpentine grassland colonies of Euphydryas editha buyensis. populations considered together have populations were included within the The Service responds that the phenotypic, geographic and ecological subspecies buyensis. the subspecies as a Endangered Species Act does not integrity, and that its currently whole would still be threatened in a redefine either species or subspecies, recognized range (present and former] is significant portion of its range and except to include subspecies within the in San Francisco, San Mateo. western listing would still be justified. [Hearing concept of “species” in respect to its Santa Clara, and Alameda Counties, transcript at 44-45.) Noting that the own provisions. Species and subspecies California. They believed no other taxonomy issue would not resolve the are biological entities, not “defined” by known populations should be included threats posed to the bay Checkerspot criteria but instead representing in the subspecies E. e. boyensis. On the butterfly, Dr. Murphy observed that no relationships among organisms, to be basis of the best scientific information one had taken the position that the San identified through a process of research presently available. therefore, the Luis Obispo populations would support and the reasoned exercise of scientific Service accepts the recommendation of the long-term survival of the bay judgment. Such research seeks to arrive its scientific review panel. checkerspot butterfly in a significant at taxonomic interpretations that best The remaining subject of comments portion of its range. (Hearing transcript reflect current knowledge of biological relating to status for listing (threats to at 52.) The Service concurs that a listing relations among populations. To bay checkerspot butterfly habitat from determination is justified regardless of postpone protection for the known various human activities and projects) the taxonomic classificationof the San remnants of the bay checkerspot attracted by far the most attention and Benito and San Luis Obisno Countv butterfly while all issues that may be comment. populations. Noting that the petitioners relevant are researched does not accord Three comments indicated that the do not use subspecific classifications in with the Service’s interpretation of the bay checkerspot butterfly cannot be their studies on checkerspot butterflies, Endangered Species Act, and could endangered if it survived farming, Dr. Murphy indicated that their attention result in elimination of that taxon from a construction of an interstate highway, had been drawn to discrete populations very significant portion of any range carbon monoxide poisoning from cars that were historically referred to as ever likely to be established for it. The using that highway, repeated sprayings bujrensis. (Hearing transcript at 52-53.) idea that the standard of “best available of malathion, destruction by off-road Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations 35371 vehicles, and years of intensive Murphy 1981). The Service believes that under the State zoning laws. Moreover. livestock grazing. Two comments these various factors and activities have while it is the intent of the conservation opposed to the listing of the bay the potential to contribute to significant agreement to restore habitat damaged checkerspot butterfly stated that fxurther declines in an already severely by the landfill, through reconstitution of Interstate 280 destroyed hundreds of depleted and geographically fragmented serpentine grassland and enhancement acres of serpentine outcrops and subspecies. Without measures to of carrying capacity on undisturbed presumably many bay checkerspot actively manage and enhance colonies habitat by intensive grazing controls or butterflies and their larval host plants. of the bay checkerspot butterfly, the other artificial methods, the Service The latter comments also noted that likelihood of its extinction will be notes that the best-intentioned construction of interstate 289 was increased significantly. restoration and management programs vigorously supported by many of those Only a few threats to the largest and for biological systems can and often do now hoping to block development of a therefore the most important habitat, inadvertently sustain losses or golf course at Edgewood Park. near Morgan Hill, California, were otherwise fail to fully achieve their The Service responds that, except for described in comments. Lawyers for intended goals. Appropriate long-term carbon monoxide, the factors referred to United Technologies Corp. evidently assurances are provided in the Morgan in these comments may have all assumed that controlled burning there in Hill conservation agreement in case the contributed to the critical situation now continued conformance with Santa restoration and management programs faced by the bay checkerspot butterfly. Clara County fire safety codes would do not adequately minimize or The fact that the butterfly survives pose a threat to the colony and compensate for adverse impacts from despite these many assaults on its automatically be prevented. They also the landfill project. habitat and populations cannot be mentioned a great number of activities Former U.S. representative Ed Zschau, construed as evidence for its involving the Federal Government, the U.S. Air Force, the U.S. Navy, the immortality. Processes leading up to national security, and/or national Bureau of Reclamation, the Western extinction happen over time, usually defense that might be involved in Area Power Administration, the County resulting from a combination of many threats to the colony at some future of Santa Clara, the City of San Jose, factors and events. The butterfly time. They criticized the Service for United Technologies Corp.. Pacific Gas survives now in a much depleted and failing to list these aspects of the and Electric Company, and Waste h’ig hl y vulnerable condition. hlorgan Hill proposed critical habitat in Management of California Inc. all Determination of threatened status the proposed rule. expressed concern over the listing of the relates to the application of the five The Service responds that the bay checkerspot butterfly as an factors identified in section 4(a) of the comments and other available endangered species and the proposed Endangered Species Act, any one of information regarding habitat on the designation of critical habitat in the which may make a species eligible for property owned by United Technology Morgan Hill area. Several expressed the listing. The five factors and their Corp. indicate the colony there is hope that the Service would not list the application to the bay checkerspot numerically small and scattered on species prematurely, without benefit of butterfly are presented in the section serpentine deposits having suboptimum adequate study. Congressional and ‘Summary of Factors Affecting the conditions, but is otherwise in relatively military concern was general, the Species.” The elimination of former good condition. The Service believes correspondents expressing fears that extensive serpentine grasslands as a that the past activities conducted on the activities at United Technologies Corp. result of the construction of Interstate property. including limited grazing, and vital to the national interest could 280 is well known. This is one of the controlled burning outside of areas conflict with the butterfly and possibly activities contributing to the decline of actually occupied by the butterfly, have be affected by the listing or designation the bay checkerspot identified in the presented no significant threats to the of critical habitat. The County of Santa original proposal. colony. Consultation with the Santa Clara and United Technologies Corp. One comment in opposition to the bay Clara County and San Jose City also questioned the inclusion of large checkerspot listing stated that the Planning Departments indicated that areas of non-serpentine habitat in the Service merely assumes that there are no plans for urban or description of critical habitat at Morgan modification of present bay checkerspot commerical development on United Hill. habitat would seriously reduce the size Technologies property that would The Service refers these of the colonies and that habitat will be seriously alter the habitat. At present, correspondents to its response to United adversely modified by the various all of the serpentine grassland habitat at Technologies Corp. above. Although the proposed projects. Another comment Morgan Hill is zoned as open space. On Service is not directly concerned in this stated that the Service only assumes that basis no specific threats were final rule with designation of or that a reduction in the size of the identified for United Technologies exclusions from the proposed critical butterfly colonies would result from a property actually occupied by the habitat, it also wants to elaborate to severe, prolonged drought. butterfly when the rule was proposed. these correspondents the function of its The Service responds that several The situation remains unchanged. regulations at 50 CFR 424.12, according developments are proposed or Threatened status is appropriate for the to which the description in the proposed underway for the largest remaining bay checkerspot butterfly because, rule was made. Section 424.12(e) habitats of the bay checkerspot although the Morgan Hill site provides provides that if several sites, each butterflv. Many of those plans call for the largest remaining habitat for the satisfying the requirements for elimination and/or increased butterfly, and a conservation agreement designation as critical habitat, are fragmentation of portions of the bay has been developed to help protect the located in proximity to one another, an checkerspot’s habitat. The Service also species over about thirty percent of the inclusive area may be designated. notes that the past detrimental effects of habitat there, approximately seventy Section 424.12(c) directs the Service to drought on bay checkerspot populations percent of the habitat remains in an use non-ephemeral reference points in are well documented in the literature uncertain, highly vulnerable status and making any designation. The cited (Ehrlich et al. 1980, Ehrlich and could later be rezoned for development informational function of such 35372 Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations designation is served best if the efforts. The decision to change the threat to the butterfly. One also reference points can be located easily listing status of the bay checkerspot expressed concern that excavation at on maps and in the field. Inclusive butterfly from endangered to threatened the landfill site would produce crysotile references inform Federal agencies of is. in part, a result of the landfill asbestos dust that could extend damage critical habitat within, and are easily agreement. However, the agreement per or adverse effects to areas well outside revised if better data, maps, or se, does not significantly change the the ac!ual landfill site and excavation landmarks become available. Reports by status of the species as a whole, or area. Harvey and Stanley Associates (1982). benefit a majority of the species’ The Service concurs with !he concerns Dibblee (1973) Soil Conservation distribution. The landfill will eliminate expressed about asbestos dust, which Service (1974) and Dr. Dennis Murphy an estimated 6-10 percent of the low to has been an issue in other areas having (pers. comm.) illustrate that the moderate quality proposed critical the same soil type. The Service also is appropriate serpentine habitat near habitat at Morgan Hill. The agreement aware that the landfill itself could Morgan Hill is patchy and discontinuous commits Waste Management, or any of eliminate butterfly habitat, which in a generally linear band approximately its assigns, responsibility to undertake relates more directly to the status of the 7.500 feet wide, extending from species conservation activities and species. The Service, in coordinating northwest to southeast between funding for 10 years, including managing through the section 7 conference process Metcalfe Road and Anderson Dam. grazing to enhance population levels with all parties involved in the The Bureau of Reclamation, the and carrying capacity, developing and development of the landfill site. has Western Area Power Administration, implementing me’hods for reestablishing the County of Santa Clara, and Pacific and repopulating serpentine grassland determined that careful and attentive Gas and Electric Company were all habitat destroyed by the landfill, implementation of Waste Management’s concerned about a 115 kV transmission establishing butterflies in former habitat conservation program is not line proposed to cross the Morgan Hill habitat, and prcviding for habitat likely to reduce appreciably the survival habitat area between Metcalfe acquisition in the event the other and recovery of the bay checkerspot Substation and a planned Bureau of measures prove unsuccessful or butterfly. Reclamation pumping plant at Coyote, inadequate. As a consequence of the Since elimination of the large bay part of the San Felipe Project. The above, the Service issued a conference checkerspot butterfly colony at Bureau of Reclamation indicated that opinion that the conservation agreement Woodside, the second largest area of the Western Area Power Administration was not expected to reduce appreciably primary habitat for the butterfly is in would address the impacts of this the likelihood of survival and recovery Edgewood Park in San Mateo County. A proposed action in the environmental of the bay checkerspot butterfly. eolf course and recreation facilitv documents being prepared for the Although this program does not iroposed by the county for the park project. substantially improve the status of the were identified as ~osinsz threats to this The Service responds that it is aware species as a whole, it does provide a habitat in the propbsed pule. The of this project and has been in significant legal mechanism that is greatest number of individual comments. communication with the Western Area expected to compensate for the adverse for and against listing this butterfly, Power Administration. Adequate impacts of the landfill project. If further related directly to the Edgewood Park planning and some design modifications eff&ts were undertaken to manage the habitat area. have been implemented to avoid remainder of the Morean Hill orooosed An entomologist provided additional adverse impacts to the butterfly. critical habitat, the c&servatibn bf the data on the bay checkerspot population Waste Management of California, Inc. species could be substantially numbers at Edgewood Park, indicating a requested that the bay checkerspot advanced. A further discussion of why dramatic decline since 1981 from more butterfly be listed as threatened as threatened status has been determined than UX,OOO down to between 2,ooO and opposed to endangered. The company is provided in the section “Summary of 3,000 in 1984. He attributed the developed and is now implementing a Factors”. The delay of critical habitat reductions in 1983 and 1984 to adverse conservation agreement for the butterfly designation announced in this final rule weather conditions in 1982 and 1983. In in conjunction with their landfill project is not a response to Waste 1985 the population was estimated at in the Morgan Hill habitat area. This Management’s specific request. fewer than 1,000, in 1986 fewer than 500, agreement is intended to off-set and With regard to Waste Management’s compensate for the adverse impacts of and in 1987 the population remained at request for special regulations to allow about 500 to 1,000 (Murphy, pers. comm., Waste Management’s landfill on the the take of the bay checkerspot butterfly butterfly and its habitat. Waste July 1987). The Service notes that the if threatened status is determined, the Edgewood population may now be Management believes that the Service acknowledges the availability of implementation of this program special regulations under section 4(d) of considerably smaller than that needed decreases the threats to the species. the Endangered Species Act, but finds in for recovery and long-term population Waste Management further requested this situation special regulations are not viability at this site. that if threatened status were necessary. The landfill activity has been A geologist who supported the determined then special regulations be covered by the incidental take statement proposed listing discussed the possible issued to authorize the incidental taking in the Service’s conference biological transmission of waters through the of butterflies for the landfill. Waste opinion, which will be evaluated for serpentine body at Edgewood Park. He Management’s representative also adoption as a final biological opinion expressed concern that golf course requested that the Service delay the after this listing becomes effective, irrigation could enter the serpentine designation of critical habitat in this provided there are no significant fracture system and resurface within or area until the final habitat conservation changes in the facts or the project design near bay checkerspot populations. He program has been submitted to the since the date of the conference opinion. noted that this water could carry Service. Three comments in favor of listing the various chemicals such as insecticides, The Service acknowledges the bay checkerspot as an endangered herbicides, and fertilizers from the conservation agreement for the landfill species stated that the proposed nearby golf course and that such and encourages such coordination sanitary landfill poses a significant transmissions could inadvertently Federal Register / Vol. 52, No. 181 / Friday, September 18, 1687 / Rules and Regulations 35373 d:+mage or destroy the bay checkerspot the Environmental Impact Report (19m) One comment stated that the habitats population at Edgewood Park. identified environmental effects of the of the bay checkerspo? butterfly at A licensed pest control operator, in proposed Master Plan for Edgewood Jasper Ridge and San Bruno Mountain SlJppOrt of listing the bay checkerspot Park, which includes the proposed golf are not threatened. The commenter butterfly, provided information on likely course development and other further qualified the statement by noting adverse effects of insecticide and recreation facilities. This document that the San Bruno colony is protected herbicide applications for a golf course indicated that 42 to 64 percent of the by the San Bruno Mountain Area at Edgewood Park. He warned of that serpentine grassland habitat at Habitat Conservation Plan and the chemical drift could either kill the bay Edgewood Park would be destroyed as a Jasper Ridge colony is protected as a checkerspot outright and/or kill the result of Master Plan implementation biological preserve. butterfly’s obligate host plants. and that there would be significant The Service replies that, indeed, no The County of San Mateo and 10 adverse effects to the bay checkerspot developments are proposed in these two individuals expressed concern that butterfly and irreversible losses of areas that would adversely affect the listing the bay checkerspot butterfly individuals and colonies. Because local bay checkerspot. However, observations would block the proposed golf course at extirpation OTfurther declines of the bay oi the bay checkerspot at San Bruno Edgewood Park. Most of those checkerspot are likely even without Mountain over the last four years commenting in this vein indicated that disturbance, the Service believes that indicate the colony is small, declining, the Endangered Species Act is being the existing Master Plan (San Mateo and likely to disappear. The habitat is used by local environmentalists to halt County 1984) contains substantial considered marginal as described below S:n Male0 County’s recreation plans for additional threats to the bay under ‘Summary of Factors.” In 199% Edgewood Park, specifically, the golf checkerspot butterfly. This does not fewer than 50 bay checkerspot c,mrse development. mean, however, that modifications or butterflies were observed at the site. In The Service responds that identifying alternative designs could not alleviate or 1386, a wildfire swept through the site. and listing endangered or threatened significantly reduce these threats. The In 1987, no bay checkerspot butterflies species pursuant to the Endangered Specific Conservation Program (San were observed at San Bruno Mountain, Species Act, as amended, is a Mateo County 1985) provides one and it is possible the population has requirement mandated by Congress. alternative design. San Mateo County been extirpated. The San Bruno Furthermore, as noted by another and one individual opposed to the listing hfountain Habitat Conservation Plan comment, the Service must look sole/~ pointed out that not all of the serpentine (County of San Mateo 1982) provides no to the best scientific and commercial area within Edgewood Park is occupied specific provisions for protecting or information available when making a by the butterfly. San Mateo County managing the bay checkerspot colony decision on a proposed listing of an further stated that some of the proposed other than leaving the habitat as natural endangered or threatened species under habitat area at Edgewood Park has not open space. section 4 of the Endangered Species Act. been and could not be viable habitat for The Jasper Ridge colony occurs within Economic or other non-biological factors the butterfly. a biological preserve of Stanford cdn not be considered in the listing The Service responds that habitat University that is used for biological decision. (See H.R. Conf. Rep. No. 835, identification in all areas is based on 97th Cong., 2d Sess.19 j1982).) In making detailed survey information from a research. Although no developments are its decision in this issue, the Service has proposed for this area, the serpentine variety of sources. In the Edgewood outcrop is small, and the grassland r:!ied solely upon the best available Park area, information sources included biological and commercial information. habitat is fragmented and interspersed Torrey and Torrey Inc. (1982), Reid and with chaparral non-habitat. The Service recognizes that such listings hlurphy (1983), and Dr. Dennis Murphy may affect various State and local (pers. comm.). The situation there is Consequently, the attendant small bay entities and planned and approved similar to that at Morgan Hill, in that checkerspot colony is subject to severe development proposals through the local serpentine grassland occupies about 20 fluctuations in population levels. This planning process. even though Federal percent of the park. It forms a nearly colony once consisted of three listings primarily affect Federal continuous band varying in width from demographic units (Ehrlich and Murphy activities that may pose impacts to the about 250 to 2,500 feet surrounding a 19811, but it now consists of two as a bay checkerspot butterfly. central ridge formed by an uplifted core result of drought-induced extirpation of Twelve comments pointed out that the of Franciscan greenstone. The one unit in the mid-1970s. If the drought golf course as planned was designed to distribution of adult butterflies, larvae, had continued one more year, it is protect as much of the butterfly’s habitat and host plants within the encircling considered likely that all three units as possible. They further indicated that serpentine matrix shows two disjunct would have succumbed (Ehrlich and the golf course would not “wipe out” the areas of high butterfly concentration, Murphy 1981, Ehrlich et al. 1980). These butterfly and thus does not pose a one along the western edge of factors were emphasized in a letter of threat. One comment stated that there is Edgewood Park, and the other near comment from the President of Stanford no basis for inferring that any future Iliilcrest Way. There are several sites of University that supported the listing. single event will cause the demise of the lesser occurrence between these two The Service believes that the San bay checkerspot butterfly. The County sites and on the north side of the central Bruno Mountain and Jasper Ridge of San Mateo submitted a Snecific ridge. Again, because of the disjunct colonies, although relatively Conservation Program that it believes distribution of host plants, larvae, adults unthreatened by human activities, face a can accommodate the golf course as and serpentine soils within the park, the high probability of extirpation from well as protection of the butterfly. map in the proposed rule outlined an natural factors such as prolonged The Service responds that the inclusive area with convenient, non- drought. proposed golf course at Edgewood Park ephemeral boundaries. Such boundaries The California Department of Fish and is only one of many activities and serve to inform Federal agencies that Game called attention to the proposed factors that may adversely affect the habitat exists within that may be rule’s inaccuracy of referring to habitat bay checkerspot butterfly. San Mateo affected by Federal activities, funding or in Redwood City as the Woodside zone. County’s Stage II Final Supplement to permits. Although the colony there is or was a 35374 Federal Register / Vol. 52, No. 181 / Friday, September 18, 1987 / Rules and Regulations

remnant on the edge of the former large also provided specific information on No one was denied an opportunity to butterfly colony in Woodside, the the occurrence of, and threats to, the speak, and the hearing was extended to Service agrees with this butterfly. Their data‘was in agreement accommodate ail speakers. Mr. Jones’ recommendation and will refer to that with the information presented in the video recording was held until last so area in the future as the Redwood City proposed rule. that all individuals actually present area or zone. The Conservation Monitoring Centre would be given an opportunity to speak One comment stated that the Service and the Butterfly Specialist Group of the first. The Service considered that assumes that because no Federal or International Union for the presentations on the provisions of the State regulations exist to protect the bay Conservation of Nature and Natural Act and background information in checkerspot, no efforts are being made Resources [IUCN), and Dr. Thomas W. support of the listings were necessary to to preserve it. The City of San Jose, the Davies of California Academy of clarify the proposal and ensure County of San Mateo, and Santa Clara Sciences [Department of Entomology) everyone was familiar with the purpose County all indicated that their also provided opinions and substantive of the public hearing. environmental review process and data from other scientists. An IUCN United Technologies Corp. and two various regulations help protect and report on this butterfly (Wells et al. individuals commented on listing provide measures to mitiga!e impacts to 1983) in the Invertebrae Red Data Book procedures noting that there was the butterfly. One comment stated that affirms significant threats for the San insufficient notification of the proposal Federal listing cannot help these local Bruno. Jasper Ridge and Edgewood Park and the public hearing. A concerned efforts to protect the butterfly. Several colonies. The letter from the California citizen stated that the file information comments stated that we should try to Academy of Sciences described former on the listings was not reasonably refurbish the habitats or move the habitats and confirmed the loss of bay available to people in the local area. organisms rather than just declare them checkerspot colonies in Alameda United Technologies further alleged that to be endangered and then allow them County that resulted from home they were denied due process in this to become extinct. construction plantings of Monterey proceeding, that the Service failed to The Service replies that it recognizes pine, and drought. follow the notice requirements specified the efforts of local agencies and Twelve chapters representing eight in the listing regulations, that the individuals to protect the butterfly: private conservation organizations newspaper publication was inadequate however, Federal listing is required for registered support for tbe listing in for the proposed rule, that the Service any species fitting the definition of a letters and oral comments at the public erred by adding the Morgan Hill critical threatened or endangered species after hearings. A person that testified for one habitat site to the proposed rule after careful consideration of the five criteria private organization did not support the the petition had been filed with the outlined in seciton 4(a) of the Act. The listing. None of these testimonials added Service, and that the Service erred in Service is required by law to list the bay substantive information regarding the denying United Technologies an checkerspot as threatened because it butterfly’s status or threats not already opportunity for a second public hearing. clearly qualifies under these criteria. in the record, but the Service The Service responds that the Act and Whether the listing will assist local appreciates the interest and concern 50 CFR 424.16(c) require that efforts to protect the butterfly is not shown. notifications of the proposal and the pertinent to listing itselk recognition of With respect to procedures related to public hearing be made public through threatened status makes a statement the proposed listing, one comment notices published in the Federal Register about the survival prospects of the complained about the conditions at the and in local newspapers (refer to the species. The Service hopes, however, public hearing. The complainant stated previous background section for specific that Federal listing will help promote the that the public address system did not newspapers and publication dates). The conservation of the bay checkerspot work at first, and then later it played Service provided all required notices through protective measures otherwise music, making it difficult to hear the under 50 CFR 424.16(c)(l)(iii). The unavailable to local agencies and speakers. He stated that the Service Service published its proposed individuals. For example, Federal listing used too much time explaining the rulemaking in the Federal Register on restricts the taking of the bay reasons for listing the species; concepts September 11,1964. “Actual notice” of checkerspot butterfly pursuant to that were previously discussed in the the proposal was given to the California section 9(a)(l] of the Act. Moreover, Federal Register. He noted equal time Department of Fish and Game and to Federal listing provides additional was not allowed for each side to present each county in which the bay opportunities for the management and relevant facts: with the specific example checkerspot butterfly was believed to recovery of the species directly, by that a videotaped presentation prepared occur. To the extent the Service had developing and implementing a recovery by Mr. Robert Trent Jones was delayed knowledge of the potential impacts plan, and through cooperation with the until after 10 o’clock and by that time proposed by the listing to any Federal State of California via Section 6 of the most of the audience had left. agencies, local authorities, or private Act. Further discussion of the benefits of The Service apologizes for any individuals or organizations, notice was listing can be found below under the inconvenience to the audience for the provided to these entities and heading “Available Conservation public address system, but this did not individuals. It should also be noted, Measures”. appear to be a significant problem at the however, that actual notice (by Agencies whose comments extended meeting. Several other commenters individual letter) is not a regulatory general support for listing included the stated that they thought the procedures requirement under 50 CFR National Park Service (Regional Office and conditions at the public hearing 414.16(c)(l)(iii) and that only a good and Golden Gate National Recreation were very good. The court recorder did faith effort is required on the part of the *Area), which commented that Federal not report difficulties, and the Service to notify states and counties and listing is required for the bay transcripts are evidently complete. The to determine the jurisdictions within checkerspot butterfly to effect needed hearing officer ensured that all those which the species is believed to occur. protection, and the California wishing to comment were given “[AIn unintentional and unplanned Department of Fish and Game, which adequate time to present relevant facts. failure of the notification system shall Federal Register / VoI. 52, lUo. 181 / Friday, September 18, 1987 / Rules and Regulations 35375 not invalidate the proposed regulation” critical habitat site and incorporate it appropriateness of Iisting species under (H.R. Conf. Rep. No. 1804,66th Gong.. 2d into a proposed rule after evaluating the section 4. In regard to the contention Sess. 27 (1978).) With regard to the information. that the property of United Technologies newspaper publication, United With respect to the requirement for a has been “taken” by the Service’s Technologies Corp. fails to point out second hearing, as recommended by action, the Service replies that United specific facts concerning why the United Technologies, although the Technologies failed to indicate how newspaper publications were Service was not required to do so, the such taking will occur and why this inadequate. Given the extensive public Service held a second hearing on July 16, rulemaking process per se would effect record developed by the Service on the 1966, to resolve differing scientific such a taking. The section 4 listing proposed rule and the full participation interpretations of data concerning newly procedure requires the Service merely to by development interests, the public, discovered populations of checkerspot analyze biological factors to determine environmental groups, and various butterflies. United Technologies fully the scientific appropriateness of Federal, State, county, and city officials participated in the second public classifying wildife or plant species as in the rulemaking process [and in hearing, and, therefore, allegations that endangered or threatened. Once that particular the extensive participation by they have been denied the opportunity procedure is accomplished, other United Technologies), the Service is to personally appear before the Service procedures exist, either through section confideni that it has fully complied with during a public hearing no longer have 7 of section 10 of the Act, to anaIyze the procedural requirements of the weight. The Service further clarifies that impacts posed by particular regulations. To the extent it is entitled to written comments carry equal weight development projects on endangered or procedural due process in an with those presented at public hearings. threatened species. At present, facts Endangered Species Act rulemaking, No special authority or significance is have not been presented to show that a United Technologies and all other accorded oral statements made at public taking of United Technologies property interested parties have been accorded hearings. would occur as a result of a final listing adequate opportunity to comment In light of all of the notice and public of the bay checkerspot butterfly. United numerous time3 on the proposed comment opportunities accorded by the Technologies has failed to make a rulemaking and, along with all other Service in the rulemaking process for the showing of actual conflicts between its members of the general public, have bay checkerspot butterfly listing, it is activities and the regulatory action received all of the public notices that not necessary that the Service publish a taken by the Service in listing the bay are provided for by the statute and the second proposed rule to rectify alleged checkerspot butterfly under Section 4 of regulations. No other notice or hearing procedural infirmities. The Service’s the Endangered Species Act- Further, responsibilities are required to be administrative record is complete for the United Technologies has failed to show fulfilled bv the Service under the issuance of a final listing rule. that the statutory procedures for listing Endangerid Species Act or the listing In its May ~1985, comments, United species as endangered or threatened, or regulations, and United Technologies Technologies objected to the listing of the application of such procedures to the has failed to point out facts that would the bay checkerspot butterfly and bay checkerspot butterfly, are entitle it to any special procedural designation of its critical habitat on the unconstitutionally vague. The Service is rights. grounds that such proposed actions under a statutory obligation to follow With respect to the reasonable “would constitute a (taking) of (United through with the listing process based availability of the file information, the Technologies] private property for on the best availa.ble scientific and information was available at the public use without just compensation, in commercial information. Service’s Regional Office in Portland, violation to the Fifth Amendment” to the Further, United Technologies is not Oregon. A phone number and address Constitution of the United States. United entitled to compensation for its were provided in the notifications for Technologies also contended that the expenses incurred in investigating and those wishing to ask question3 or listing and critical habitat procedures defending against this proceeding. The inquire about the file information. The provided for in the Endangered Species section 4 listing process is not an Service’s file information was also Act are unconstitutionally vague. adversary proceeding, but rather is the available through the Freedom of The Service responds that the Service’s public involvement process for Information Act, and was requested by constitutional issues raised by United obtaining the best available information several parties. The Service considers Technologies challenge the fundamental before making a final decision on listing that all procedural requirements of the procedural process provided by proposals. Act have been met. Congress for the iisting of endangered With respect to United Technologies Summary of Factors Affecting the and threatened species and the Species comments regarding inclusion of the designation of their critical habitats, if proposed Morgan Hill critical habitat any. As such, these contentions cannot After a thorough review and after the petition, the site was clearly be addressed in the final rule because consideration of all information indicated in the proposed rule. Any the Service’s determination on whether available, the Service has determined failure on the petitioner’s part to include to list the bay checkerspot butterfly that the bay checkerspot butterfly the site within the scope of their petition cannot be influenced by non-biological (Euphydrycs editho bayensis) should be is not fatal to the rulemaking process, factors. The Service can state, however, classified as a threatened species. since the proposed rule undergoes a that no federa court has determined Procedures found at section 4(a)(l] of complete regulatory review that that the listing procedure provided for in the Endangered Species Act (16 U.S.C. provides for public notice and comment Section 4 of the Endangered Species Act 1531 et seq.) and regulations on the expanded proposal. Moreover, is unconstitutionally vague. promulgated to impIement the listing the petitioner was under na duty to Furthermore, the biological standards provisions of the Act (50 CFR Part 424) address the issue of critical habitat in a specified in section 4(a)(l) of the Act are were followed. A species may be listing petition. The Service had not vague and have been followed by determined to be an endangered or complete authority to accept the new the Service since the Act was first threatened species due to one or more of information concerning the Morgan Hill passed in 1973 to determine the the five factors described in section 35376 Federal Register / Vol. 52. No. 181 / Friday, September 18, 1987 / Rules and Regulations

4(a)(l). These factors and their . studies there revealed the existence of Marginal non-serpentine grassland application to the bay checkerspot three distinguishable demographic habitat that has supported recorded butterfly (Euphydryas editha bayensis) (interbreeding) units within the single colonies of the bay check&spot butterfly are as follows: colony. but drought extirpated one of occurred in Alameda County at Berkeley A. The Present or Threatened those in 1964 and again in 1974, and (extirpated). San Francisco County at Destruction. Modification. or conservative extrapolations predicted Twin Peaks and Mount Davidson (both Curtailment of its Habitat or Range the extirpation of the other two units as extirpated], San Mateo County at well if the 1975-1977 drought had lasted Brisbane [extirpated) and San Bruno Geologic map sheets show four large only one year longer. Mountain (possibly extirpated], and in serpentine outcrops that all probably Satellite colonies similar to the one at Santa Clara County near Coyote once constituted primary habitat for the Jasper Ridge were observed to become Reservoir (extirpated). Dr. Arnold has bay checkerspot butterfly. A large extirpated by habitat modification at noted the presence of similar possible outcrop at San Leandro in Alameda Joaquin Miller in Alameda County, and habitat in the vicinity of San Francisco County had a historic bay checkerspot in 1977 by combined drought and habitat Jail. on Sweeny Ridge, and in San Pedro population, but apparently no longer modification near Hillsborough in San Valley in San Mateo County. supports the butterfly. San Mateo Mateo County, near Silver Creek and B. Overutilization for Commercial, County has two such large outcrops, one west of Uvas Reservoir in Santa Clara at San Mateo, lying northeast of Crystal Recreational, Scientific, or Educational County. and at Morgan Territory Road, Purposes Springs Reservoir and extending in Alameda County. The colony at southeast beyond the intersection of Morgan Territory Road had previously Although specimens of the bay Interstate Highway 280 and Highway 92, existed in close proximity to a checkerspot butterfly are valuable to and a second one extending from what Euphydryas editha Iuestherae colony on collectors, overcollecting has not been is now Edgewood Park easiward to a serpentine formation at nearby Mount identified as a threat to any colony. To Woodside Road. Habitat on the San discourage unnecessary collecting, Mateo outcrop was almost eliminated Diablo. In 1985, Dr. Richard Arnold found bay checkerspot butterflies at two Stanford University offers old by construction of Interstate Highway small outcrop localities in Santa Clara specimens from its museum on an 286. although a remnant colony or exchange basis. recolonization is reported near the County where they were previously highway intersection mentioned. unreported, one west of Calero C. Disease or Predation Habitat on the second outcrop is Reservoir. and one about 2.5 miles west fragmented into smaller units by southwest of San Martin. Whether these Ninety to ninety-nine percent of bay urbanization and road construction. A are recolonizations since 1977 from the checkerspot butterfly larvae die of very significant fraction remains in Morgan Hill colony about 5 miles away, starvation while in prediapause instars. Edgewood Park, but the portion in or survived the last severe drought Three to twenty-four percent of the Woodside was largely eliminated by stress in situ cannot be determined, but remaining postdiapause larvae at the housing development, leaving a very they are on serpentine grassland Jasper Ridge colony are killed by three small (approximately 26 acre) remnant habitats smaller than some occupied by species of parasitoids (Ehrlich et al. inside the citv limits of Redwood Citv. colonies that disappeared in 1977. The 1975). Because of high prediapause The Edgewood Park habitat segment”is small portions of former primary habitat mortality and because the greatest now the second largest remaining area in Redwood City and in San Mateo have parasitism only occurs during years of of bay checkerspot habitat and appears been fragmented by urbanization, and high butterfly numbers, even this high to be vital to the species’ continued colonies on them can be expected to act rate of parasitism is not a major factor survival. The fourth and largest in the future as satellite colonies. The in determining the size of any bay serpentine outcrop in the known range colony in Redwood City may be checkerspot butterfly population. In occurs in Santa Clara County. It extends extirpated. as no butterflies have been years of large butterfly numbers, the in a narrow belt about 16 miles from observed there in the past four years. majority of the butterflies still escape Hellyer Canyon to near the southeast Serpentine grassland sites that have parasitism and provide recruitment in end of Anderson Lake. The portions of probably supported satellite colonies of subsequent years. this outcrop northwest of Metcalf Road E. e. bayensis at one time or another are D. The Inadequacy of Existing and southeast of the Coyote Creek outlet found in San Francisco County in a row Regulatory Mechanisms from Anderson Lake appear to have of seven sites from Fort Point to been adversely modified by overgrazing. Hunter’s Point, at two sites in Alameda The bay checkerspot butterfly is not The remaining segment on the east face County, near Albany and near adequately protected from habitat loss. of Coyote Creek Valley between Metcalf Lexington. and at 15 more sites in Santa illegal collection, or harm under State or Road and the Anderson Lake outlet Clara County, one south of Saratoga. local regulations. Federal listing would supports the largest and most robust one east of Lexington Reservoir, four provide additional protection to wild remaining colony of these butterflies sites between Guadalupe Reservoir and populations of this butterfly. and also appears to constitute the most New Almaden, three sites lying north. E. Other Natural or Manmade Factors vital population reservoir. south and west of Chesbro Reservoir, Affecting its Continued Existence Approximately 26 smaller serpentine two sites in Santa Theresa Park. and outcrops are mapped in or close to the four sites near Gilroy and along Sargent Habitat damage can reduce the known range of the bay checkerspot Fault. Many of these sites were carrying capacity of a habitat or the size butterfly in Alameda, San Francisco, surveyed briefly by Dr. Richard Arnold of a colony to a level at which natural San Mateo and Santa Clara Counties. during the adult butterfly flight season climatic changes lead to extinction. The The best-studied bay checkerspot in 1985 without establishing the drought of 1976 and 1977 in association butterfly colony on such an outcrop is in presence of bay checkerspot butterflies, with overgrazing caused the the Jasper Ridge Biological Preserve of and his comments note that most of the disappearance of four colonies of the Stanford University, located east of sites he visited in Santa Clara County bay checkerspot butterfly (Murphy and Searsville Reservoir. Very detailed appeared to be overgrazed. Ehrlich 1980). and greatly reduced the Federa! Register / Vol. 52, No. i81 / Friday, September 13. 1~37 j Rti!es and Regclations 3537’ __-~--._~- --~-- -__ --_~---~ sm,?ll a::d !!sus more suscectib!e to periodi(‘ environmenrai stl:chas!it;::,. retraining habitat a! each 2pFCiiiS to offtbr s~;bstantial po;en!id! fO7 rPeS;a!I!iSh~meni . :‘hiS. Wh;!C t!iP ‘>d. CileckersDot tutt?!rfig’ is noi przser.ri! :q danger oi ex:inc?:on t’r.rozgho.ui d slacificant portion ol its ra.n.ge. ?he Serbice finds that [his subsoecies ‘s !ikeIv to become an endangered species withL1 the foreseeable future :hroughou: a si%Dificant portion of i:s ra!:ge. and B “tfiyeatened” classification is aporopriak. Critical Ka!$at

SZCtiOr? G(d)(3) O’the r”Ct l-f2~~1~~,5 :hd! cr~rical habi:a: be &sigcated to tk.cx nlz:cic-!~~m cxforAi prudes: and d~~PImk!d~jlE cOnCUr”eP.tlv LYi!f: the d?iex~ina::on that a specIeS is endangered or tbrea!emd. The Se--ice br:liel;es that prompi dr~‘er%:~~:tjcn cf threateced stdc;:;s fcr tki ;-. ir ckcckerspot btltterfi, :5 ‘.SSFJli!;i!_ . . ;And. tvarranied by the besr scientific informa:ion ava:iabIe. However, critical habi:at is not deteznnicab!e a: this tize and it mrist be postpone& Section G(b)/?] 0E ?he 3-t retjzii exist in an area rvith a large human population and competing-proposals for land xse. The habitat identification process seeks ta resolve a ccT.:ple:. ir!erdigi?ation of pr:mary. per5?a5er.! habitat. br;bitat having ?rans:+o:;*. and variable valtie to survival. and non- habit;!. Because of these comFIek:ties arid the extent of the acti-cities hejng assessed. the Service his noi ccr:pie!rd the analyses required by sections 4ja,!!3i(A) and I[::j(L!) of tke .4,-r ii: rerpert to the drs@a!ion of cri:iz:t habitat. and :he:efore. d fkai cr.;;c;: habitat &signation is n,)t ~CI determir,abie. Aval!able Conservation %!eawxes Conservation me&sure5 pr::\iide of San hrateo ar?r! the Cities of in&I-iduals. The Endangered Spe~es Sourh Sal: F;dncisco. Birbane and Daly Act provides for possible land Ci?y under section 10(d) for incidental acquisition and co-peration with the take of three eRLlangersd species States and requires initiation of pursuax! to the San Bruno rvtountain recovery actlons by the Service Habitat Conservation Pian does not foilowing listing. The protection required cover the bay checkerspot butterfly. As of Federal agencies and the prohibitions a result. listing of the bay checkerspot 35378 Federal Register / Vol. 52. No. 181 / Friday, September 18. 1987 / Rules and Regulations - butterfly may require issuance of a new Increase: the response of checkerspot Torrev and Torrey. Inc. 1982. Draft or amended section 10(a) permit. butterfly (Euph~~dryos) populations to the Environmental Impact Report Edpewood Caltforma drought. Oecoiogia. 46:11X-105. County Park Master Plan. San h,lateo National Environmental Policy Act Ehrlich. P.R.. R.R. White. M.C. Singer. SW. County Division of Parks-and Recreation The Fish and Wildlife Service has McKechnie and L.E. Gilbert. 1975. 56 pp. determined that an Environmental Checkerspot butterflies: a hIstorical Weils. S.M.. &le. R.M. and W.M. Collins. perspective. Science 166:221-228. 1983. The IUCN Invertebrate Red Data Assessment. as defined under the Emmel. T.C.. and J.F. Emmel. 1973. Thr Book. IUCN Conservation Monitoring authority of the National Environmenta! Butterflies ofSouthern Culifornio. Naturai Centre. Cambridge. England. L + 632 pp. Policy Act of 1969, need not be prepared History Museum of Los Angeles County. White. R.R. and MC. and M.C. Singer. 1974. in connection with regulations adopted 148pp. + xii. Geographical distribution of hostplant pursuant to section 4(a) of the Emmel. TX.. and J.F. Emmel. 1975. A new choice in Euphydryos editho Endangered Species Act of 1973. as subspecies of Euphydryos editho from the [Nymphalidae). J. Lepid. Sot. Z&103-107. Channel Islands of California. J. Res. Lepid. amended. A notice outlining the Author Service’s reasons for this determination 13(1974):131-136. was published in the Federal Register on Harvey and Stanley Associates. Inc. 1983. The primary authors of this final rule Biotic Reconnaissance of the Proposed October 25,1983 (48 FR 49244). are George E. Drewry, of the Service’s Kirby Canyon Class II-2 Disposal Site. References Cited Draft Environmental Impact Report. San Washington Office of Endangered Jose. California. 32 pp. Species. and Monty D. Knudsen of the Brussard. P.F.. P.R. Ehrlich and M.C. Singer. Johnson. M.P.. A.D. Keith and P.R. Ehrlich. Sacramento Field Office. 1974. Adult movements and population 1968. The population biology of the List of Subjects in 50 CFR Part 17 structure in Euphydwas editho. Evolution. butterfly. .&&p&q-os e&ho. VII. Has E. 28:406-415. editho evolved a serpentine race? Endangered and threatened wildlife. County of San Ma&o. 1982. San Bruno Evolution 22:7Q%805. Mountain Area Habitat Conservation Plan. Fish. Marine mammals, Plants Kruckeberg. A. 1984. California’s serpentine, (agriculture). Two volumes. 372 pp. Fremontia 12(1):11-17. County of San Mateo. 1984. Stage II Final McKechnie. S.W.. P.R. Ehrlich and R.R. Regulations Promulgation Supplement to the Environmental Impact White. 1975. Population genetics of Report for Edgewood County Park Master Euphydryas butterflies. I. Genetic variation Accordingly, Part 17. Subchapter B of Plan. 295 pp. and the neutrality hypothesis. Genetics Chapter I. Title 50 of the Code of Federal County of San Mateo. 1985. The Edgewood Park Specific Conservation Plan. 8 pp. + 81:571-594. Regulations, is amended as set forth maps. Murphy. D.D. 1981. The role of adult below: Dibhlee. T.W. 1973. Preliminary geologic map resources in the population biology of of the Morgan Hill quadrangle. Santa Clara Euphydryus butterflies. Unpublished Ph.D. PART 17--[AMENDED] County. California. U.S. Geological Survey thesis. Stanford University. Stanford, open file map. 1 map. California. 101 pp. 1. The authority citation for Part 17 Des Passes. CF. 1964. A synonymic list of the Murphy. D.D. and P.R. Ehrlich. 1980. Two continues to read as follows: Nearctic Rhopalocera. Lepidopterists’ California checkerspot butterfly subspecies: one new. one on the verge of Authority: Pub. L. 93-205.87 Stat. 884: Pub. Society Memoir No. 1. v + 145 pp. L. 94-359. 90 Stat. 911: Pub. L. 95-632,92 Stat. Doudoroff, M. 1935. Notes on two local extinction. J. Lepidopterists’ Sot. 34:316- 320. 3751: Pub. L. 96159.93 Stat. 1225; Pub. L. 97- butterflies. Pan-Pacific Entomologist 11:14% 304.96 Stat. 1411 (16 U.S.C. 1531 et seq.); Pub. Ehrlich. P.R. ‘1965. The population biology of Reid. T. and D.D. Murphy. 1983. Edgewood Park Site Bay Checkerspot Survey and L. 99-625,lC~O Stat. 3500 (1986). unless the butterfly, Euphydryos e&ho. II. The otherwise noted. structure of the Jasper Ridge Colony. Planning Constraints Analysis. San Mateo Evolution lQ:327-336. County. California. 13 pp. 2. Amend 5 17.11(h) by adding the Ehrlich. P.R. 1979. The butterflies of Jasper Smger. M.C. 1971. Evolution of food-plant following, in alphabetical order under Ridge. Coevolution Quart. 19:327-336. preferences in the butterfly Euphydryos “Insects.” to the List of Endangered and Ehrlich. P.R. and D.D. Murphy. 1981. The editho. Evolution 35:383-389. population biology of checkerspot Soil Conservation Service. 1974. Soil Survey Threatened Wildlife: butterflies (Euphydryos). Biol. Zentralblatt of Eastern Santa Clara Area. California. 90 5 17.11 Endangered and threatened 100:613:629.. pp. + maps. wildlife. Ehrlich. P.R.. D.D. Murphy, MC. Singer, C.B. Sternitzky. R.F. 1937. A race of Euph-v&yos . . t . l Sherwood. P.R. White and I.L. Brown. 1980. editho Boisduval (Lepidoptera). Canad. Extinction. reduction. stability and Entomol. 6920~205. (h) l l l - --

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Dated: September 14.1987. Susan Recce. Acting Assistant Secretog for Fish and Wildlife and Parks. [FR Dot. 87-21603 Filed 9-17-87; 8~45 am] BlLlJNG CODE 43J(w%-u